KWAN YUEN MEI v. LAU SUI YUEN

HCPI 569/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 569 OF 2009

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HCPI 570/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 570 OF 2009

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DECISIONS

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1.  The hearing is conducted in Chinese. However, since all the relevant documents submitted by the parties are in English, I decide to hand down the Decisions in English.

2.  I have before me the following applications:

(i) 2 summonses by the Defendants dated 2 May 2013 for the Plaintiff’s revised Statement of Claim dated 25 April 2013 in both actions (if filed by the Plaintiff) be set aside for irregularity on the ground that they failed to comply with the Order dated 19 April 2013 (“the Irregularity Applications”);

(ii) 2 summonses by the Defendants dated 8 August 2013 for RAOs against the Plaintiff (“the RAO Applications”);

(iii) 2 summonses by the Plaintiff dated 27 August 2013 to oppose the RAO Applications; and

(iv) 2 summonses by the Defendants dated 28 October 2014 to dismiss the Plaintiff’s claims for: (a) want of prosecution, namely, the Plaintiff having failed to file and serve the revised Amended Statements of Claim in compliance with the Order dated 19 April 2013; (b) prolonged/repeated/inordinate and inexcusable delay on the part of the Plaintiff to the prejudice of the Defendants; and/or (c) procedural abuse and/or questionable tactics/conduct and/or want of good faith on the part of the Plaintiff in these actions (“the Dismissal Applications”).

3.  For the purpose of these Decisions, I refer “the Defendants” as the Defendant in HCPI 569/2009 and the 2^nd and 5^th Defendants in HCPI 570/2009.  The claim against the 1^st, 3^rd and 4^th Defendants in HCPI 570/2009 had already been struck out.

4.  The background of these 2 cases has been set out in my Decision handed down earlier on 9 October 2012 (“the Earlier Decision”), and I do not want to repeat the same here.

5.  The effect of the Earlier Decision is that the Plaintiff is allowed to maintain the claim against the Defendants for assault and battery against the treating doctor (the Defendant in HCPI 569/2009), the nurse (the 2^nd Defendant in HCPI 570/2009) and the Hospital Authority (the 5^th Defendant in HCPI 570/2009) for carrying out the urine test on the deceased (the Plaintiff’s mother) without the consent of the deceased or her family members.  However, all the claims for medical negligence were struck out.

6.  In the Earlier Decision, I had allowed the Plaintiff to file and serve Amended Statements of Claim against the Defendants in terms of the Plaintiff’s revised Amended Statements of Claim lodged on 15 September 2011.  Unfortunately, the Plaintiff ignored the Earlier Decision.  On 23 November and 6 December 2012, the Plaintiff took out 2 summonses applying for leave to file different versions of the Statements of Claim.  I dismissed the applications on 12 December 2012 on the ground that the proposed versions of the Statements of Claim were not consistent with the Earlier Decision I handed down on 9 October 2012.  Similar applications were taken out by the Plaintiff later but all of them were dismissed by Master Li on 27 December 2012 and myself on 28 January and 19 February 2013.  In all these hearings before myself, I had reminded the Plaintiff to file the proper Amended Statements of Claim in accordance with the Earlier Decision.  The Plaintiff took out the same applications on 10 April 2013.  I dismissed the applications again on 19 April 2013 and ordered the Plaintiffs to file the revised Amended Statement of Claim as per the copy annexed to the Order within 14 days.  In the hearing, I had reminded the Plaintiff to comply with the Order or that her claims might be dismissed.

7.  In all these applications and the subsequent pleadings sought to be filed by the Plaintiff, the Plaintiff either included the claim for medical negligence in the pleadings, or added some new materials in the pleadings which were contrary to the Earlier Decision itself.

8.  There should have been no difficulty for the Plaintiff to comply with the Order dated 19 April 2013, and she should have been fully aware of the consequences of failing to comply with the Order. Unfortunately, the Plaintiff failed to comply with the Order yet again and filed  the revised Statements of Claim on 24 April 2013 each with an additional paragraph under the heading “Criminal Commition” before the Statement of Truth in the following wording:

“The Revised Statement of Claim is illegal and was drafted by the tricky Mak Hon Ming (copy enclosed). The undersigned (Plaintiff) was insisted to submit an official sworn copy to the High Court along with more than twenty thousands dollars of fines. The undersigned has resisted such an illegal action but it was forced by the High Court after months of resistance. I must announce that it is a crime to submit an untrue Revised Statement of Claim under pressure from Lawyer Sit and the High Court. No one should be forced to violate the law by lying in a sworn document.”

9.  From the above paragraph, one can see that the Plaintiff does not accept the Earlier Decision made by the court in striking out the claim for medical negligence against the Defendants.

10.  It is clear that the revised Statements of Claim dated 25 April 2013 and filed by the Plaintiff on the following day do not comply with the Order dated 19 April 2013.  I therefore allow the Irregularity Applications.

11.  This is not the first time that the Plaintiff has refused to comply with the court order.  As mentioned above, the Plaintiff did not accept the Earlier Decision and sought to file different versions of the revised Statements of Claim contrary to the Earlier Decision.  This is certainly an abuse of process of the court involving repeated contumelious defaults on the part of the Plaintiff to comply with court orders.  The Plaintiff made a belated attempt to file the correct versions of the Statements of Claim only in October 2014, but in my judgment, this was simply too late.  The court had repeatedly emphasised to the Plaintiff the importance of complying with court orders, and she was well aware of the consequences of failing to do so.  Numerous opportunities had been given to the Plaintiff to rectify the defaults, and yet the Plaintiff failed to observe the rules and the orders of the court. Under such circumstances, the Plaintiff should not be allowed to proceed with these claims against the Defendants, the quantum of which probably falls within the jurisdiction of the District Court.  I therefore also allow the Dismissal Applications.

12.  That leaves only the RAO Applications. The history of these cases shows that the Plaintiff had repeatedly failed to observe court orders.  The Plaintiff also has a habit of taking out numerous unmeritorious applications before the court.  In fact, the court had made interim RAOs against the Plaintiff on 10 October 2013 pending the determination of the formal RAO Applications.  In order to prevent further abuses, I allow the RAO Applications in the terms provided for in the summonses with me as the designated judge, save that the term “inter-partes” in paragraphs 2, 5 and 6 be deleted.  I also dismiss the Plaintiff’s summonses dated 27 August 2013 to oppose the RAO Applications.

13.  The Plaintiff had sought to file various summonses after the making of the interim RAOs on 10 October 2013 including the ones enclosed in the Plaintiff’s letter dated 15 May 2015.  I refuse to grant such leave as there is no merit in such applications.  I had already refused leave for the Plaintiff to file the summonses referred to in the Plaintiff’s letters dated 27 October, 10, 13 & 18 November 2014 (see: the letter from the court dated 9 February 2015).  In these applications, the Plaintiff sought to file the correct versions of the Amended Statements of Claim in accordance with the Order dated 19 April 2013.  But as I have mentioned above, it was simply too late.  As the Plaintiff had repeatedly refused to comply with court orders in the past, no further opportunity should be given to the Plaintiff.

14.  Costs should follow the event.  The Plaintiff has repeatedly ignored the orders of the court which necessitates the taking out of the various applications.  As the Plaintiff’s conduct amounts to abuse of process of the court, I order that the costs of the Irregularity Applications, the Dismissal Applications, the RAO Applications and the Plaintiff’s applications dated 27 August 2013 be paid by the Plaintiff to the Defendants to be taxed on an indemnity basis.  However, the court has not made a final determination on the merits of the Plaintiff’s remaining claims and so the costs of the actions should be paid by the Plaintiff on normal party-and-party basis.  I therefore order that, subject to the costs order above, the costs of the actions be paid by the Plaintiff to the Defendants to be taxed on party-and-party basis.